Thursday, November 22, 2012

Giladi, "Francis Lieber on Public War"

New from Rotem Giladi (Hebrew University): "Francis Lieber on Public War," Goettingen Journal of International Law 4 (2012) 2,
447-477. Here's the abstract:

This paper examines Francis Lieber's concept of modern war as "public war" - in the
Code he drafted for the 1863 Union Armies and in his earlier writings. Though Lieber
was not the first to engage the distinction between private and public war, his
treatment of modern war as exclusively public nevertheless deserves special
attention. It became, in time, a foundational concept of the 19th Century effort to
modernize and humanize the laws of war. Today, it remains embedded, albeit implicit,
in contemporary international humanitarian law and its paradigmatic interstate war
outlook.

Yet Lieber's public war definition was driven by the ideological sensibilities of
his youth in Vormärz Germany: romantic nationalism, ardent republicanism, and
profound faith in modernity and progress. It took normative form but was,
essentially, an ideological assertion. Lieber's public war definition sought to
offer ideological justification for the modern nation State, its formation and
existence. It also sought to construct and justify, again in ideological terms, the
formation, existence, and preservation of an international order comprised of nation
States; such order, alone, could meet the challenges of modern conditions. For
Lieber, limiting war to nations and States alone was an ideological imperative of
progressive civilization in the modern age.

Reflection on Lieber's public war definition suggest lines of inquiry that may
produce a richer understanding of the intellectual foundations and ideological
motivation of modern international law. At the same time, such inquiries compel
historical, normative, and policy reconsideration of interstate paradigm of war and
its costs. They also promise to enrich contemporary normative and policy debates
about the regulation of privatized warfare and non-state actors.